I appreciate the opportunity to offer comments to proposed changes to the VRP regulations.  Specific comments are provided below. 

The larger issue as I see it is how to continue to keep the VRP program appealing to property and business owners in the Commonwealth.  We all know that the program facilitates redevelopment and increased tax revenues.  Eliminating uncertainty in how the program is implemented is key.  DEQ’s positions on site characterization and risk assessment need to be applied as consistently as possible, and DEQ needs to clearly define if, when, and how off-site contamination needs to be assessed.  I routinely hear my clients express concern about having to knock on their neighbor’s door to request permission to sample on the neighbor’s property.  Implementing the “kick off” meetings with the VRP staff, the participant, consultants and the risk assessment staff has helped eliminate some uncertainty (on the part of the participant and consultant) and allows for the important issues to be laid on the table from the start.       

Jim Thornhill’s Comment 2 (9 VAC 20-160-30.B.1) – I agree with Jim’s proposed language – my experience is that access to a property by a prospective or contract purchaser is extremely limited, and the requirements proposed by DEQ would be difficult to satisfy.

Jim Thornhill’s Comment 4 (9 VAC 20-160-30.D).   My experience is that many sites have one or more components that could result in the site being deemed an open dump or unpermitted solid waste management facility, but that may not be known before or during the application process.  The language needs to be tightened regarding application of the open dump criteria to a site.  I agree with Jim Thornhill’s proposed language.

Jim Thornhill’s Comment 7 (9 VAC 20-160-40.A.8)--The Department proposes the following change to 9 VAC 20-160-40.A.8:

8. A notarized certification by the applicant that to the best of his knowledge all the information as set forth in this subsection is true and accurate. An application signed by the applicant and the owner of the property attesting that to the best of their knowledge that all of the information as set forth in this subsection is true and accurate.

Jim described a scenario where the applicant is not the property owner but is the contract purchaser.  For sites being enrolled by the contract purchaser the owner does not always have incentive to attest to something about the condition of the site, particularly if the owner fears it may result in an enforcement action.  In the scenario where the application is submitted by the contract purchaser, the owner should simply have to acknowledge that he/she is aware that an application is being submitted.  I agree with Jim’s proposed amended language.   

Jim Thornhill’s Comment 8 (9 VAC 20-160-60.C)—Thornhill proposed the following language:  Failure to remit the required registration fee within 90 days of the date of eligibility verification shall result in the loss of eligibility status of the applicant. The applicant must reestablish his eligibility for participation in the program, unless alternate provisions are proposed and deemed acceptable to the department the department agrees to extend the period for payment for good cause shown by the applicant.

I agree with the proposed language.  My clients rarely blink at the enrollment fee, but I have had clients who failed to submit the enrollment fee in a timely manner, generally due to an oversight, and the department should have the flexibility to recognize that without repeating the eligibility process.  Fortunately, Kevin Greene provides gentle reminders when fees have not been paid. 

Jim Thornhill’s Comment 10 (9 VAC 20-160-70.A)—re: new language is proposed requiring each component of the Voluntary Remediation Report be separate.  I agree that the participant and its consultant should be able to determine how to best prepare the reports, but I understand that DEQ staff would prefer to receive reports in “familiar” formats in order to decrease the review time.  I prefer to have clearly delineated SCRs, Risk Assessment, and RAP reports but combining those studies in one report may make more sense for certain sites – and that is a discussion the consultant and case officer can have, rather than it being mandated in the regulations. 

Jim Thornhill’s Comment 11 (9 VAC 20-160-70.D)--The Department has proposed a new provision as follows:

D. Until certificate issuance, all participants shall submit an annual report to the department containing a brief summary of any actions ongoing or completed as well as any planned future actions for the next reporting period. This report shall be submitted by July 1 using the "VRP Site Status Reporting Form." Failure to submit within 60 days may result in the site's Voluntary Remediation Program eligibility status being terminated.

I agree that the proposed language is not helpful for a voluntary program and should be softened – if a participant feels that eligibility can be terminated simply because a form has not been submitted on time the participant will question whether it is wise to spend money and time to proceed through the program knowing that that risk is out there.  The proposed alternative (Thornhill) requiring receipt of notice from the department is good.

Jim Thornhill’s Comment 17 (9 VAC 20-160-110.J) – I agree that requiring future owners notify the department re: change of ownership is unnecessary and will make participants or future owners fear that its certificate could be revoked due to a failure register with the department re: new ownership.

Channing Martin’s Comment 3 (9 VAC 20-160-40.A.4): I agree with the language he proposed:  "A plat of the property that indicates its approximate acreage and, if the site is less than the entire property, shows the approximate boundaries of the site." 

Tom Hardy
President

ECC, Inc.
43045 John Mosby Highway
Chantilly, VA 20152
703-327-2900 (office)
703-505.4417 (mobile)
thardy@eccfirst.com